Do
you have a favourite family photo of everyone gathered round
the Christmas tree, or sitting down to a steaming turkey dinner?
Now imagine it ripped in half, literally, with two sides of
the clan never speaking to each other again. That's the picture
wills lawyers Barry Fish and Les Kotzer regularly see in their
Toronto offices, and it's the result of poor estate planning.
"We see the devastation first hand, and it's getting
worse," says Kotzer, who notes financial planners look
at wills and estates from the point of view of saving tax.
"We do too, but we also want to avoid family fights."

In
recent years they have seen a huge increase in family feuds.
People are continually coming to them, wishing their parents
had done things differently. "Few parents do what they
should to protect their families from future fights,"
says Kotzer sadly. He also hosts a monthly television show
in Toronto focusing on wills and estates where he receives
scores of calls from fighting relatives, parents not talking
to kids, brothers angry at brothers, step kids furious with
step parents. "It's really horrendous."

Kotzer
and Fish, who have 42 years of combined legal experience in
wills, have just written a book called The Family Fight, Planning
to Avoid it. They hope it will educate people about how to
avoid inheritance problems, and spur better communication
between parents and children. "We work in the trenches
so we see what happens when kids are left picking up the pieces;
we see the pain and anger." One of the main problems
is people make assumptions they shouldn't, says Fish... "Never
assume your kids won't fight, even if you leave them things
of approximately equal value. Some of the biggest disputes
are over rings, watches, cars, CD players, china, cabinets,
tea cups . . ." In fact, never assume anything.

They
describe a father who left his RRSP of $200,000 to his son
and the rest of his estate, valued at roughly the same, to
his daughter. When the father died the son went to the bank
and picked up his cheque for a cool $200,000. The daughter
was sent a $100,000 tax bill which was applied against the
estate. "You can only imagine . . . ."

In
another unfortunate case a father left his son a coin collection
which had been valued at $15,000, and left each daughter an
equal amount. The problem was, the coin collection had appreciated
dramatically, "One daughter felt short-changed,"
The other didn't, but her husband was furious and made a big
fuss. As Fish explains, "there are marriages all round,
and various personalities, and one spouse elbows another,
which can put the siblings into difficult positions. All because
somebody decided not to update their will."

Parents
sometimes inadvertently create tremendous inequalities. Say
a parent assumes their house is worth $200,000, and leaves
it to one child, while the others receive $200,000 each in
cash. When the estate is settled the house is appraised at
$550,000, but its inheritor refuses to even things up. "The
other children feel slighted. They may even be furious at
the parent, as well as their sibling. One of the dumbest things
parents do is assume goodwill among their children. "We
see a lot of problems caused by parents assuming their kids
will work it out," says Kotzer. "Don't assume that
if you have left one child a little more, that they will share.
Even if a child wants to share, his or her spouse may not
let him. " He described the case of a child who was in
debt. The parent was afraid if the child inherited a large
sum of cash, creditors would scoop it up. So they left everything
to the other child, assuming he would share. That didn't happen,
but a family rift did.

Some
people aim to simplify things by leaving each child a fraction
of the entire estate, but this can be unfair if one child
has been a major caregiver. "It's always a tightrope:
If you treat them equally one may feel slighted. We had a
caregiver walk into our office at 2 in the afternoon one day,
and leave at 4:30 after crying the whole time. She had looked
after her mother week after week, month after month. She did
it out of love, but there was some expectation that there
would be some expression of appreciation, and none came."
The treatment she received may have been unintentional "but
the daughter found it callous, and deeply hurtful."

There
are different laws in various parts of the country, and the
authors have also written a version for the U.S., but they
stress the book is not geared to any one area. "The issues
are similar all across the country and what we try to do is
give a birds-eye view, so when you see a lawyer, you have
the background and can save on fees. We provide an in-depth
analysis of what the lawyer will go through, and real examples."

Second
marriages can be another can of worms, legally speaking. "I
dealt with a family recently where the mother died and father
remarried a woman with two children. Father and step mother
always promised everything would be split equally, no favouritism,
like the Brady Bunch. Dad died and left everything to step
mother, but when she died she left everything to her own children,
including dad's war medals." The man's son got nothing
and never spoke to his step sisters again. The experts say
even the simple appointment of an executor can create waves,
"especially if one child gets all the power and turns
into a dictator. "Many people assume the child with financial
experience, or the one who has taken an accounting course,
should be the executor. That's a false assumption. It might
be better to appoint both children, or all of them. Parents
should ask the kids if they want to be executors. You'd be
surprised what they will say."

Home-made
wills are another potential horror show, he said, recalling
the case of a woman who left her siblings her "personal
monies" in the bank. When she died, her two sisters claimed
all the woman's substantial term deposits, not just the cash
in her accounts. Her husband argued the large deposits were
never intended for them. A fight between the siblings and
husband erupted and finally the case went to court. "After
tens of thousands in fees, the small bank accounts went to
the siblings, and everything else to the husband. All that
over two words." Many people get into problems because
they don't fully understood terms like joint ownership or
beneficiary of life insurance, terms which override what is
stated in a will. "These items are no longer yours to
give, they are already given to someone else...

"We
had a case of a woman who left everything equally to her two
daughters, but years back she had named one daughter a joint
owner of a bank account, purely for convenience. Our client
argued that the $20,000 in that account should also be split,
but her sister declined."

"You
have to bullet-proof your will if you want to protect your
children," says Kotzer, who added it is also important
to be financially organized, which is why the book includes
a detailed planning list. "You'd be surprised how many
children come in with a big plastic bag full of papers. They
have no idea about their parents affairs, and we are not private
detectives. It can be a real mess."